Citation Nr: 0711938
Decision Date: 04/24/07 Archive Date: 05/01/07
DOCKET NO. 06-18 689 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to nonservice-connected pension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Thomas D. Jones, Counsel
INTRODUCTION
The veteran served on active duty from April 1947 to April
1950, and from September 1950 to March 1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2005 letter decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which found the veteran was not eligible for
nonservice-connected pension. The veteran subsequently
initiated and perfected an appeal of this determination. The
veteran initially requested a personal hearing at the RO
before a Decision Review Officer; however, while such a
hearing was scheduled for July 2006, he failed to report at
his scheduled time. As the veteran has not offered an
explanation for his failure to appear, his hearing request
will be considered withdrawn.
In April 2007, the Board granted the veteran's motion for
advancement of his appeal on the Board's docket.
The Board notes the veteran appears to be asserting that his
in-service misconduct and resultant undesirable discharge
following his September 1950 to March 1954 period of military
service were the result of a psychiatric disorder. It thus
appears that he is attempting to reopen his claim regarding
the character of his discharge from that period of service
that was finally decided in an April 2000 administrative
decision. The RO should contact the veteran for
clarification as to whether he is requesting a readjudication
of that prior claim and should take all proper adjudicative
action.
FINDINGS OF FACT
1. In a prior April 2000 administrative decision, VA
determined the veteran's discharge following his wartime
service from September 28, 1950, to March 18, 1954, was
dishonorable for VA purposes. This decision was not appealed
in a timely fashion, and became final.
2. The veteran does not have qualifying wartime service, and
therefore is ineligible for nonservice-connected pension.
CONCLUSION OF LAW
The basic eligibility requirements for VA nonservice-
connected pension benefits have not been met. 38 U.S.C.A.
§§ 101(2), (11), 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2,
3.3, 3.12 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the appellant's claim, the Board has
considered whether VA has met all statutory and regulatory
notice and duty to assist provisions as set forth in the
Veterans Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326 (2006).
However, the Board notes that the veteran's claim is being
denied based on ineligibility under the law for the benefit
claimed. The U. S. Court of Appeals for Veterans Claims
(Court) has held that the VCAA has no effect on an appeal
where the law is dispositive of the matter. See Manning v.
Principi, 16 Vet. App. 534 (2002).
The veteran seeks entitlement to nonservice-connected
pension. Under the provisions of 38 U.S.C.A. § 1521, pension
is payable to a veteran who served for 90 days or more during
a period of war and who is permanently and totally disabled
due to nonservice-connected disabilities which are not the
result of the veteran's willful misconduct. 38 U.S.C.A.
§ 1521 (West 2002 & Supp. 2005).
38 C.F.R. § 3.3 provides that basic entitlement to pension
exists if a veteran served in the active military, naval, or
air service for 90 days or more during a period of war; or
served in the active military, naval, or air service during a
period of war and was discharged or released from such
service for a service-connected disability; or served in the
active military, naval, or air service for a period of 90
consecutive days or more and such period began or ended
during a period of war; or served in the active military,
naval, or air service for an aggregate of 90 days or more in
two or more separate periods of service during more than one
period of war. 38 C.F.R. § 3.3(a)(3) (2006).
In the present case, the veteran had two separate periods of
active military service. The first was from April 17, 1947,
to April 28, 1950. His discharge following this period of
service was considered honorable. However, this service was
not during a period of war. The period of war for World War
II is the period from December 7, 1941, to December 31, 1946,
inclusive, and period of war for the Korean Conflict Era is
the period from June 27, 1950, to January 31, 1955,
inclusive. 38 C.F.R. § 3.2(d), (e) (2006). Thus, the
veteran's first period of service, although honorable, was
not during a recognized period of war, and therefore may not
be used to qualify him for nonservice-connected pension
benefits under 38 U.S.C.A. § 1521.
Next, the veteran had a second period of active military
service from September 28, 1950, to March 18, 1954, which is
recognized as during the Korean Conflict Era. However, the
veteran's discharge from this period of service was
undesirable, and resulted in 356 days lost from service. In
a prior April 2000 administrative decision, the RO found the
veteran's second period of service, beginning in September
1950, was dishonorable for VA purposes under 38 C.F.R.
§ 3.12. The RO found the veteran's undesirable discharge
resulted from a pattern of willful and persistent misconduct
resulting in service separation for the good of the service
after review by a Board of Officers. As this administrative
decision was not appealed by the veteran, it is final, and
may not be reopened unless new and material evidence is
submitted. 38 U.S.C.A. §§ 5108, 7015 (West 2002); 38 C.F.R.
§ 3.156 (2006). The veteran is reminded that if he wishes to
establish eligibility for VA benefits generally, he must file
an application to reopen the issue of the character of his
discharge following his service from September 1950 to March
1954.
Regarding the veteran's nonservice-connected pension claim,
the veteran's second period resulted in a discharge which was
found to be dishonorable for VA purposes. As this second
period was the veteran's only period of wartime service, the
veteran is ineligible for nonservice-connected pension. The
April 2000 administrative finding that the veteran's
September 1954 service separation was dishonorable for VA
purposes is not currently before the Board, as the veteran
has not filed a proper application to reopen this
determination.
In conclusion, the records do not show that the veteran had
qualified active duty service for 90 days during a period of
war, nor do they show that he was discharged for a service-
connected disability. Thus, the Board finds that the veteran
does not meet the basic eligibility requirements for
nonservice-connected pension benefits; and this benefit must
be denied. 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.2, 3.3.
In Sabonis v. Brown [6 Vet. App. 426, 430 (1994)], the Court
held that where the law, and not the evidence, is dispositive
of a claim, such claim should be denied because of the
absence of legal merit or the lack of entitlement under the
law. In this case, the veteran lacks legal entitlement to
nonservice-connected disability pension due to non-qualifying
service. In such cases, the benefit of the doubt does not
apply.
ORDER
Entitlement to nonservice-connected pension is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs